ALJDEC decisions subject to certification as final
2020A-04044-CHC-ROC · Registrar of Contractors · 2022-02-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Rick Alan Nagle,
COMPLAINANT,
v.
Daniel Milan McCoy
DBA: McCoy Construction, Co.,
License No. 170641,
RESPONDENT.
No. 2020A-04044-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 27, 2021 and February 8, 2022
APPEARANCES: Complainant Rick Alan Nagle appeared on behalf of himself. Mark Molique, Esq. appeared on behalf of Respondent Daniel Milan McCoy.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about March 13, 2018, Complainant Rick Alan Nagle and Respondent Daniel Milan McCoy DBA: McCoy Construction, Co. (Mr. McCoy) entered into a contract wherein Mr. McCoy would build a new home for Mr. Nagle.
2. On or about March 13, 2018, Mr. McCoy started work.
3. Mr. McCoy installed a single sewer lift station. The lift station was not included in the plans for the home.
4. On or about August 31, 2019, Mr. McCoy stopped work.
5. On or about August 20, 2020, the Arizona Registrar of Contractors (ROC) received a complaint alleging poor workmanship on the part of Mr. McCoy related to the installation of a gray water pumping station.
6. On or about September 20, 2020, ROC Investigator David Fagerburg conducted a jobsite inspection. Investigator Fagerburg observed a sewer lift station located between the home and the street along the driveway. Investigator Fagerburg observed a strong sewage odor. Investigator Fagerburg noticed that the sewer stub station was approximately 1 foot higher than the sewer line coming from the home. 7. After the jobsite inspection, Investigator Fagerburg contacted the building inspector from the Town of Cave Creek. The plans and the inspection history showed that there was no sewer lift station specified on the plans and no engineered plans submitted to the Town of Cave Creek to address the lift station.
8. On or about September 25, 2020, Investigator Fagerburg issued a Directive to Mr. McCoy. Through the Directive, the ROC directed Mr. McCoy to correct complaint item 1 by appropriate means, no later than Monday, October 26, 2020.
The Directive provided, in relevant part, as follows:
Dear Respondent: After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A) (22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Monday 10-26-2020.
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DIRECTIVE REQUIREMENTS
Prior to the respondent making any corrections per this directive the respondent is to submit engineered plans to the Town of Cave Creek and obtain any and all permits required to make the following corrections listed in this directive.
You are directed to remedy the following violations by the appropriate means:
Compliant Item 1: Dan McCoy, our General Contractor, installed a gray water pumping station which was undersized for the size of our home. I had to personally remove the inadequate burned out pump and install a temporary pump to remove the waste that was backing up in our toilets and showers, at my cost. Dan McCoy refused to remove and install the proper system. I contacted Dan McCoy and asked him to send the bad pump back for warranty and get a new pump until we could get quotes for the proper system to be installed. I gave him the pump but he never got back to me regarding the pump or warranty. I got a quote for the proper system which would cost $9,000.00. I have made several attempts via text to Dan McCoy to get this resolved. Dan McCoy informed me that he had no responsibility for the problem.
Investigator’s Observation: I was able to verify that there is no lift station specified on the stamped and approved plans and there were no special permits issued or any inspections performed related to the lift station.
Governing Rule: ARS §32-1154 (A)(2) ARS §32-1154(3).
9. On October 15, 2020, Mr. McCoy sent the following e-mail message to Investigator Fagerburg:
Hi David. I just want to update you on the above complaint. The permit for the lift station is 20R-309. I have submitted the calculations to the town of Cave Creek on October 13, 2020. I expect the permit #20R-309 to be issued to me in a couple of day's. At that time I will have them do the inspection.
David, I have a question. It seems my sin in this situation was not getting the lift station permitted as it was not on the approved plans. Nothing to do with defective workmanship. As it turns out, the system that was installed was more than adequate to handle the house based on fixture count, length of run, and height of lift. The pump gave out after more than a year, most likely because of what was flushed down the toilets, not because it was inadequately sized. The pump was covered under the manufacturers warranty but installation was not covered under their warranty as is the case with most mechanical components. Mr. Nagle received a new pump of which has not been installed. My question is, will the ROC require me to install the new pump or because of the warranty, he would bear the cost of installation? I want to comply with the ROC directive. Can you give me any insight. Thank You, Dan McCoy McCoy Construction Co.
10. On October 15, 2020, Investigator Fagerburg sent the following e-mail response to Mr. McCoy:
Dan, I am unable to fully answer your question at this time as the permit has not been issued and the lift station has not been inspected.
After the City of Cave Creek has determined whether or not the lift station is adequately sized and the permit is signed off I will be able to provide more guidance.
11. On October 20, 2020, Jessica Rolnick, Plans Examiner/Building Inspector for the Town of Cave Creek, Arizona, notified Mr. McCoy that she had received his messages regarding the sewer ejector permit. Ms. Rolnick informed Mr. McCoy that she had just received the file that day and would be unable to issue process the application until Monday or Tuesday of the following week. See the ROC’s Administrative Record, pg. 141.
12. On October 28, 2020, Mr. McCoy obtained the required permit to install a single pump lift station at Mr. Nagle’s residence.
13. On October 29, 2020, Mr. McCoy notified Investigator Fagerburg and
Mr. Nagle that he obtained a permit for the lift station. See Exhibit 7, pg. 15 and the ROC’s administrative record, pg. 149.
14. On October 29, 2020, Investigator Fagerburg sent the following e-mail response to Mr. McCoy:
Thanks for the update. I will contact the complainant to confirm more time will be allowed to complete the work as the directive expired 10-26-2020. If more time is not allowed by the complainant I will forward the complaint to legal. The correspondence has been attached to the case file.
15. On November 2, 2020, Mr. McCoy inquired with Investigator Fagerburg
whether he was obligated to install a different system requested by Mr. Nagle or the system that was approved by the Town of Cave Creek. See the ROC’s administrative record pg. 127. Investigator Fagerburg responded on November 2, 2020, that
Mr. McCoy was required under Arizona law to follow the engineered system that was approved by the local jurisdiction. See id.
16. On November 4, 2020, Mr. McCoy notified Investigator Fabergurg that
Mr. Nagle had not responded to Mr. McCoy’s request to provide access to his home to install the lift station.
17. On November 5, 2020, Mr. McCoy sent a copy of the permit to Mr. Nagle. Mr. McCoy notified Mr. Nagle that he would install the lift station that upcoming Saturday, November 8, 2020. See the ROC’s administrative record, pg. 112.
18. On November 5, 2020, Mr. Nagle sent the following e-mail to Mr. McCoy:
Subject:Re: lift station Dan: Thank you for sending me the spec sheets.
As soon as I get a chance I will look at them and get back with you. If the equipment you are recommending is of good quality we would be able to schedule the installation the week of the 16th.
Rick
19. On November 16, 2020, Mr. McCoy came to Mr. Nagle’s property
to install the single lift station approved by the Town of Cave Creek.
20. On November 16, 2020, Mr. Nagle notified Mr. McCoy by text message that Mr. McCoy had no permission to be on his property and that he wanted to review the specifications of the equipment before installation because he would not agree to a single pump unit.
21. On November 4, 2020, Investigator Fagerburg recommended that the ROC’s legal department issue a Citation against Mr. Nagle’s license.
22. On or about November 12, 2020, the Registrar issued a Citation against Mr. McCoy’s license. Through the Citation, the Registrar alleges that Mr. McCoy may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) (specifically, Arizona Administrative Code R4-9-108(a); and A.R.S. § 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of McCoy.
23. Mr. McCoy filed a timely answer to the Citation.
24. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
25. On or about December 23, 2020, the ROC issued a Notice of Hearing setting the matter for hearing on January 27, 2021.
26. On January 25, 2021, Investigator Fagerburg conducted a prehearing inspection. Investigator Fagerburg observed that Mr. Nagle had installed a new dual lift station.
27. A hearing was held on January 27, 2021 and February 8, 2022.
28. At the hearing, Mr. Nagle testified on behalf of himself and presented the testimony of Frank Dousten. Mr. Nagle testified on behalf of himself. Investigator Fagerburg testified regarding his investigation of the complaint and the issuance of the Directive.
29. Frank Dousten is a licensed contractor. Dousten gave Mr. Nagle a quote of $9,000 to install a duplex pump. At the time that Dousten observed the pump at Mr. Nagle’s home, the pump was above ground and the water was removed. Dousten testified that Mr. McCoy contacted him around October of November of 2020 to repair the pump, but Dousten was very busy. Dousten was relieved when Mr. McCoy arranged for him to repair the pump on November 16, 2020 because he was so busy and it gave him more time to schedule the repair. Dousten testified that he would have never installed a single pump system on Mr. Nagle’s home. Dousten testified he has installed single pumps on homes in the past. Dousten admitted that he would only be paid $1,900 to repair the pump through Mr. McCoy.
30. Mr. Nagle testified that Mr. McCoy performed poor work when he installed the single lift station. Mr. Nagle testified that he reached out to Mr. Mr. McCoy when the toilets backed up and a foul odor omitted from his home. After Mr. McCoy failed to repair the toilet, Mr. Nagle removed the pump out of the ground that was installed by
Mr. McCoy. Mr. Nagle receive a quote from Mr. Dousten who recommended a dual pump system. Mr. Nagle filed a complaint with the Registrar. Mr. Nagle eventually replaced the pump himself.
31. Investigator Fagerburg testified regarding his investigation of the complaint and the issuance of the Directive. Investigator Fagerburg testified that the Directive deadline was extended to November 4, 2020 because the case was not transferred to the ROC’s legal department until that time.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Arizona Revised Statutes (A.R.S.) § 32-1101 et seq.
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
3. The Administrative Law Judge may consider the ROC’s administrative record. See Arizona Administrative Code § R4-9-118.
4. A preponderance of the evidence is “such proof as convinces the trier of
fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
5. Upon consideration of the evidence presented at hearing, the Administrative law Judge concludes that Respondent did not perform work in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
6. The preponderance of the evidence shows that on October 28, 2020, Respondent obtained a permit to install a single lift station at Mr. Nagel’s property. Investigator Fagerburg stated at hearing that the Directive deadline was extended until November 4, 2020. Even if the deadline was not extended, Respondent had valid justification for failing to obtain a permit by the October 26, 2020. The weight of the evidence shows circumstances that were outside the control of Mr. Nagle caused a delay in the issuance of permits by the Town of Cave Creek. Therefore, the Administrative Law Judge concludes that Respondent did not violate A.R.S. § 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.
Done this day, February 28, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors